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EVAWI > Resources > Best Practices > FAQs > Victims with Disabilities
Q Do individuals with severe cognitive disabilities fit in the legal category of those unable to give consent?
Q Can consent be implied for non verbal individuals? If so, how?
Q What is the legal definition of a caregiver and a dependent adult?
A Do individuals with severe cognitive disabilities fit in the legal category of those unable to give consent?

If there is any reason to question whether a person is capable of providing consent to sexual activity, the investigation of a suspected sexual assault will need to focus on documenting the victim’s capabilities as well as any limitations due to disabilities. Typically, this will be a severe cognitive disability such as intellectual disability (formerly called mental retardation). However, there are other examples of cognitive disabilities that impair a person’s ability to think and learn. These could result from brain injuries or neurodegenerative diseases like dementia. If they are severe enough, they could also prevent a person from being able to provide informed consent to sexual acts. There are also situations where victims have a severe mental illness that precludes their ability to provide informed consent to sexual acts.

Regardless of the specific cause, the criminal offense is based on the person’s inability to consent to sexual acts. Specifically, three legal elements must be established:

  1. The sexual acts committed by the suspect
  2. The victim’s lack of capacity to consent to sexual acts, due to a severe cognitive disability (or mental illness)
  3. The suspect’s knowledge of the victim’s severe cognitive disability (or mental illness)

Determining the severity of a victim’s cognitive disability (or mental illness) is no simple task, and we dedicate a significant portion of the OnLine Training Institute (OLTI) module Successfully Investigating Sexual Assault Against Victims with Disabilities to providing guidance in this area. It is worth noting, however, that these determinations are not made during the preliminary response, or even by law enforcement investigators or prosecutors alone. Such decisions should be made with the assistance of clinical experts, because they have ramifications for the individual far beyond the criminal justice process in this case.

A Can consent be implied for non verbal individuals? If so, how?

Some victims will be unable to effectively communicate consent for the same reason they are incapable of consenting to sexual acts in the first place – because of a severe cognitive disability or incapacitation as a result of drug or alcohol use. In these situations, the strategy for investigating and prosecuting the case will be the same as outlined above, in response to the first question.

On the other hand, some victims may be perfectly capable of consenting to sexual acts based on their cognitive abilities -- but unable to communicate that consent because of a physical disability. This situation is very different in many important ways from the one described above. However, the logic of the investigation and prosecution will be fundamentally similar. When investigating a sexual assault offense based on the victim’s inability to consent (or communicate consent) the legal elements are as follows:

  1. Sexual penetration (no matter how slight) or sexual contact depending on the offense code being used
  2. The victim was unable to consent to sexual acts – or unable to communicate that consent – because of a disability or incapacitation.
  3. The suspect knew or should have known the extent of the victim’s disability or incapacitation.

There is no clear legal standard for establishing how severe the victim’s disability or incapacitation must be to render an individual incapable of communicating consent, so this must be established with evidence gathered during a thorough law enforcement investigation. However, it is important to keep in mind that this communication of non-consent does not need to be verbal. Even when victims cannot speak words, they may be able to push the suspect away or resist in other ways (e.g., trying to hold their legs closed, clamping down to prevent anything from entering their mouth, etc.). Beyond resistance, victims also frequently express their non-consent to sexual acts using other non-verbal behaviors or body language (e.g., crying, indicators of fear). Evidence of these behaviors are critical for documenting the lack of consent among non-verbal victims. However, they should also be documented whenever they are present in any sexual assault case – because they can corroborate the victim’s statement that sexual acts have been committed without consent.

A What is the legal definition of a caregiver and a dependent adult?

Caregiver codes pertain to people who depend on others for essential care, such as those with severe physical, mental, and emotional disabilities. Just as one example, California penal code defines a ‘caretaker’ as:

Any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
[Section 368.2 (i)]

A ‘dependent adult’ is then defined as:

Any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. ‘Dependent adult’ includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. [Section 368.2 (h)]

While the specific language will vary depending on state law, themes are often very similar throughout the country: caregivers are those who provide essential assistance with daily living for people who have severe physical or cognitive restrictions.

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